Blocking Ad Blockers, 16 J. MARSHALL REV
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THE JOHN MARSHALL REVIEW OF INTELLECTUAL PROPERTY LAW BLOCKING AD BLOCKERS TYLER BARBACOVI ABSTRACT The prevalence of ad blocking software (software that prevents the loading of web based advertisements) is a growing problem for website owners and content creators who rely on advertising revenue to earn money. While the number of ad block users continues to increase, there has thus far been no significant legal challenge to ad blocking in the United States. This comment examines how a website owner, through a combination of technological improvements and the anti-circumvention provisions of the Digital Millennium Copyright Act, could successfully raise a legal challenge against the purveyors of ad blocking software. Copyright © 2017 The John Marshall Law School Cite as Tyler Barbacovi, Blocking Ad Blockers, 16 J. MARSHALL REV. INTELL. PROP. L. 272 (2017). BLOCKING AD BLOCKERS TYLER BARBACOVI I. INTRODUCTION............................................................................................................. 273 A. Reasons for Using AFS ..................................................................................... 274 B. Attempts to Solve the AFS Problem Not Been Effective ................................ 275 C. The Rise of Ad-Walls ......................................................................................... 276 II. BACKGROUND ............................................................................................................. 278 A. Anti-Circumvention Provisions ........................................................................ 278 B. General Statutory Elements ............................................................................ 280 C. Trafficking Elements ........................................................................................ 281 III. ANALYSIS .................................................................................................................. 282 A. Is an Ad-Wall an Effective Protection Measure? ............................................ 282 B. Was the Website Viewed Without Authorization? .......................................... 284 C. Does the AFS Facilitate Infringement? ........................................................... 285 D. Was the AFS Made Available to Third Parties? ............................................. 286 E. Is the Primary Purpose of the AFS Circumvention? ...................................... 286 F. Statutory Analysis ............................................................................................. 287 IV. EXTRA-LEGAL CONSIDERATIONS & CONCLUSION ..................................................... 288 A. Alienating AFS Users may be a Poor Business Decision ............................... 289 V. CONCLUSION ............................................................................................................... 290 272 [16:272 2017] Blocking Ad Blockers 273 BLOCKING AD BLOCKERS TYLER BARBACOVI* I. INTRODUCTION Ad filtering software (“AFS”)1 is costing the advertising industry billions of dollars each year in lost revenue. Advertisers lost an estimated $22 billion in 2015 alone.2 With 198 million users already using AFS, and new users signing up daily, website owners need a way to ensure that their platforms will remain viable in the face of AFS.3 While most browsers have some kind of limited ad filtering capabilities, like pop- up blockers, AFS typically refers to software which prevents advertisements from appearing on webpages themselves (e.g. banner ads, Flash advertisements, or the commercials that appear prior to YouTube videos). AFS is typically installed via a browser extension, or plug-in. Popular AFS includes: AdBlock, Adblock Plus, and µBlock Origin. Most websites do not charge for accessing their content, relying on advertising revenue to make money. When an end user uses AFS, the advertisements, which normally appear on a webpage, are prevented from loading. For example, an end user with Adblock Plus enabled will not see any of the advertisements that appear prior to the video. While there are some legitimate reasons for using AFS beyond simply wishing to avoid bothersome advertisements, webpages rely on advertising revenue to earn a profit and fund the creation of their content.4 If everyone were to use AFS, * © Tyler Barbacovi 2017. Candidate for Juris Doctor, The John Marshall Law School, 2017; Bachelor of Arts Double Major in Philosophy and Politics, New York University, 2014. I would like to thank the staff and editors of The Review of Intellectual Property Law for all the hard work they do in putting this publication together. I would also like to thank Telly Nakos, Professor Steven Wiser, and Professor William Ford for everything they have done for me during my time at law school 1 More commonly known as ad blocking software, or ad blockers. Because this comment will reference specific AFS, like Adblock Plus, I have elected to use the less commonly used term to avoid confusion. 2 Elizabeth Morse, Ad-Blocking Software Will Cost the Ad Industry $22 Billion This Year, WALL ST. J.: DIGITS (Aug. 10, 2015, 6:28 PM), http://blogs.wsj.com/digits/2015/08/10/ad-blocking-software- will-cost-the-ad-industry-22-billion-this-year/. Revenue loss due to AFS rose 41% between 2014 and 2015. Approximately one third of all internet users now use some kind of AFS. This poses a significant threat to the viability of many web platforms, most of which make their content freely available to the end users. 3 PageFair, The Cost of Ad Blocking: PageFair and Adobe 2015 Ad Blocking Report, PAGEFAIR at 4, http://downloads.pagefair.com/reports/2015_report-the_cost_of_ad_blocking.pdf. PageFair is a company owned by Adobe which provides anti-AFS services. Much of the data on the effects of AFS comes from their research, and while their potential bias must be considered, sources like the Wall Street Journal, and Fortune magazine have cited their studies. While PageFair seeks to help website owners reduce the amount of advertisements being blocked on their page, their service is not free. Therefore, even if PageFair is successful content creators are only getting a portion of the advertising revenue they should. A better solution would be to stop the use of AFS altogether. 4 PageFair, Adblocking Goes Mainstream: PageFair and Adobe 2015 Ad Blocking Report, PAGEFAIR at 10, https://downloads.pagefair.com/wp-content/uploads/2016/05/Adblocking-Goes- Mainstream.pdf (finding that surveyed AFS users blocked ads to improve performance and protect their privacy); see also Stephanie Molt, Online Advertising More Likely to Spread Malware Than Porn, PC MAGAZINE (Feb. 1, 2013, 12:22 PM), http://www.pcmag.com/article2/0,2817,2415009,00.asp [16:272 2017] The John Marshall Review of Intellectual Property Law 274 websites that rely primarily on ad revenue would either have to find a new means of making money, or shut down. A. Reasons for Using AFS There are a number of benefits of using AFS beyond simply avoiding advertisements: loading times for webpages are reduced, battery life increases, and data usage is reduced when browsing on a metered connection.5 Most importantly, using AFS can protect end users’ personal information, and serves as a first line of defense against malware.6 Website owners long ago lost the goodwill of users who employ AFS. Most people who use AFS realize that the content they are viewing costs something to create, and would be willing to support content creators who exercise discretion.7 That being said, it is difficult to win back a previous user who has lost their trust. On the other hand, AFS companies may not be the stalwart champions of the people they initially presented themselves to be. While many AFS company philosophies talk about protecting end users from invasive and malignant advertisements, Adblock Plus’ white listing program has brought that into question. The default settings of Adblock Plus allows a list of pages with acceptable (finding that advertisements were more likely to contain malware than pornography). AFS is frequently used to protect the end user’s privacy and can be used to stop malware ridden advertisements. Additionally, many of the users who do wish to block ads only wish to block intrusive or annoying ads. Video advertisements which play sound, pop ups, and pop ins (where a notification if rendered on the page itself rather than in a separate window or tab) are seen as particularly onerous and can drive users to install AFS. Advertisers and content creators should take into consideration how these advertising practices effect their respective brands in the long term. 5 Trevor Timm, What Media Companies Don’t Want You to Know About Ad Blockers, COLUMBIA JOURNALISM REVIEW (Jun. 29, 2016), http://www.cjr.org/opinion/ad_blockers_malware_new_ york_times.php. 6 See id. (reporting that The New York Times, AOL, and BBC had their ad networks hacked resulting in advertisements attempting to install ransomware on users’ computers); Alex Hern, Major Sites Including New York Times and BBC Hit by “Ransomware” Malvertising, THE GUARDIAN (Mar. 16, 2016), https://www.theguardian.com/technology/2016/mar/16/major-sites-new-york-times-bbc- ransomware-malvertising (describing how ransomware uses ads to infect users’ computers, encrypt their data, and sell them the key using bitcoin); Jérôme Segura, Large Angler Malvertising Campaign Hits Top Publishers, MALWAREBYTES (Mar. 15, 2016), https://blog.malwarebytes.com/threat- analysis/2016/03/large-angler-malvertising-campaign-hits-top-publishers/